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Usufruct gains between spouses: a complex tangle unravelled

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Dirk Merckx
Partner
NOMA advocaat met specialisatie fiscaal recht
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Increase in usufruct and inheritance tax in the Flemish Region.

Suppose a married couple donates a flat to their children with reservation of usufruct. "When either parent dies, his or her usufruct will accrue to the surviving spouse. Whether the latter in that case has to pay inheritance tax in Flanders depends on several factors", Remke says.

Three
systems
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"In Belgian law, there are three systems regarding the usufruct increase between spouses: the conventional increase, the legal increase and the legally granted successive usufruct, abbreviated to WTOV. Whether inheritance tax is owed by the surviving spouse depends on the concrete context of the gift. What does the gift deed say? Was the donor married at the time of the gift? In this matter, it is the small nuances that can have a big tax impact."

Three systems of usufruct gains between spouses

In principle, statutory succession, conventional succession and legally granted successive usufruct coexist autonomously, each with its own legal basis. A brief overview:

1. The conventional accretion in the deed of gift
The givers provide a specific clause in the gift agreement that makes the usufruct automatically accrue to the surviving spouse. Since the gift is made on the basis of the agreement, it falls outside the estate and the transferee spouse does not pay inheritance tax, according to VLABEL.

2. The legally granted successive usufruct (WTOV) introduced by the new inheritance law since 1 September 2018
Article 4.18 NBW states that if a spouse makes a gift with a reservation of usufruct during the marriage, this usufruct automatically accrues to the surviving spouse upon death. In that case, according to VLABEL, inheritance tax is due in the Flemish Region.

3. Legal accretion introduced by the new property law since 1 September 2021
Section 3.141(4) of the Civil Code stipulates that the death of the usufructuary automatically transfers the usufruct to the surviving usufructuary. This type of acquisition is exempt from inheritance tax.

"A complex legal framework, in which the different systems can also overlap perfectly," Remke explains. "Take, for example, the situation where a spouse makes a gift during the marriage with reservation of usufruct. Then, at the time of death, there may be concurrence between the WTOV and the legal accretion in property law. And this overlap has important consequences, because where no inheritance tax is due under the legal increment, this is the case under the WTOV."

"In Belgium, there are three systems of usufruct gains between spouses: conventional gains, legal gains and legally granted successive usufruct (WTOV)."

Acquisition of usufruct without inheritance tax? Hierarchy is key

In a maze of legislation and VLABEL positions, how can you be sure that usufruct will accrue to the surviving spouse free of charge? Remke and her colleagues in the tax expert team closely follow tax news and distil a certain hierarchy between the different systems. The rule of thumb is as follows:

Conventional accretion takes precedence. If nothing was provided for in the gift deed, the WTOV applies. The statutory accretion in Article 3.141(4) is at the bottom of the hierarchy.

"If the deed of gift contains a specific increase clause, the surviving spouse in Flanders does not have to pay inheritance tax. If there is no stipulated accretion, then the surviving spouse acquires usufruct on the basis of the next rung in the hierarchy, the WTOV, and tax is due in the inheritance. There is one exception to this last situation, namely when the donor expressly excludes the WTOV, for example in a will. In that case, the surviving spouse acquires usufruct on the basis of Article 3.141(4) and does not pay inheritance tax."

It may therefore depend on one contractual provision whether the Flemish tax administration levies inheritance tax on the usufruct. Calling in a professional to draw up a well thought-out deed of gift with proper modalities is then no superfluous luxury. This way, the surviving spouse stays out of the WTOV's sights and no inheritance tax is due in the Flemish Region.

"The difference between paying inheritance tax or not sometimes lies in the subtlety of a single clause. An experienced lawyer connects the dots and offers long-term peace of mind."

NOMA, partner for to-the-point legal advice

Up-to-date expertise and an eye for legal nuance are a must to advise clients correctly and proactively. That is why NOMA's tax law lawyers sit around the meeting table every two weeks and take an in-depth look at legal twists and turns. "Those sessions are enormously instructive," Remke explains. "There we discuss cases, analyse case law and accurately map out VLABEL positions. We often start from a concrete case at the office, in order to get to the heart of a legal topic and share best practices with the rest of the team. Very fascinating as a lawyer to exchange ideas with experienced colleagues and gradually become masters of the tax field." 

About
Remke Beerens
Remke Beerens

Remke obtained her master of law degree in June 2023 and has been part of the Novius (now under the name NOMA) team since September. A lawyer with a passion for tax law, she puts her shoulders to the wheel on a broad spectrum of cases, from estate planning to partial demergers. The accessible, transparent and personal nature of NOMA fits perfectly with Remke's work ethic and motivates her to deepen her expertise every day. 

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